Herrington v. Lazaroff
2016 Ohio 7655
| Ohio Ct. App. | 2016Background
- Petitioner Damond D. Herrington filed a writ of habeas corpus seeking vacation of his attempted aggravated murder conviction, arguing attempted murder is not a cognizable crime in Ohio.
- Habeas petitions are treated as "civil actions" under R.C. 2969.21 et seq., imposing filing requirements on inmates.
- Herrington did not file the R.C. 2969.25 affidavit listing his civil actions from the prior five years at the time he commenced the petition.
- He also failed to file the six-month certified inmate account statement required by R.C. 2969.25(C)(1).
- After respondent moved to dismiss for these defects, Herrington attempted to expand the record to supply his account information but failed to properly serve the motion and sought supplementation after the petition was filed.
- The court denied leave to supplement and granted respondent's motion to dismiss for statutory noncompliance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether habeas petitions are subject to R.C. 2969.25 affidavit requirement | Herrington sought relief on merits (substantive challenge to conviction) — did not dispute applicability | Respondent: habeas is a civil action and subject to R.C. 2969.25 | Court: Habeas petitions are civil actions and the affidavit requirement applies (Fuqua) |
| Whether failure to file the R.C. 2969.25 affidavit requires dismissal | Herrington did not file the required affidavit and did not justify delay | Respondent moved to dismiss for noncompliance | Court: Failure to file the affidavit at commencement warrants dismissal (Fuqua; mandatory requirement) |
| Whether failure to file the certified six-month inmate account statement bars the action | Herrington later sought to provide account information | Respondent: statutory requirement is mandatory; absence supports dismissal | Court: Required account statement under R.C. 2969.25(C)(1) is mandatory; omission supports dismissal (Jackson; Castro) |
| Whether court should allow supplementation after dismissal motion | Herrington moved to expand record but failed to serve respondent and sought supplementation after filing | Respondent opposed; statute requires filing at commencement | Court: Denied leave to supplement because requirements must be met at commencement and service was imperfect; dismissal affirmed |
Key Cases Cited
- Fuqua v. Williams, 100 Ohio St.3d 211, 797 N.E.2d 982 (Ohio 2003) (habeas petitions are civil actions and inmate filing requirements apply)
- State ex rel. Jackson v. Calabrese, 143 Ohio St.3d 409, 38 N.E.3d 880 (Ohio 2015) (certified inmate-account statement required under R.C. 2969.25(C)(1))
- State ex rel. Castro v. Corrigan, 129 Ohio St.3d 342, 952 N.E.2d 497 (Ohio 2011) (same)
- Boles v. Knab, 129 Ohio St.3d 222, 951 N.E.2d 389 (Ohio 2011) (R.C. 2969.25 requirements are mandatory and noncompliance warrants dismissal)
- State ex rel. White v. Bechtel, 99 Ohio St.3d 11, 788 N.E.2d 634 (Ohio 2003) (statutory filing requirements enforceable)
- State ex rel. McGrath v. McDonnell, 126 Ohio St.3d 511, 935 N.E.2d 830 (Ohio 2010) (failure to comply with inmate filing statutes subjects action to dismissal)